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Commentary: Five Fourth Circuit Court openings need to be filled

U.S. Court of Appeals for the Fourth Circuit Chief Judge Karen Williams recently retired, citing serious illness.

The Fourth Circuit, long considered the nation's most ideologically conservative appeals court, will keenly feel the loss of the experienced, respected jurist, who was the tribunal's first female judge, was serving as its chief judge and was often mentioned as a Supreme Court nominee.

Judge Williams's retirement comes at a difficult time for the Fourth Circuit that will now be operating with five of its fifteen authorized judgeships vacant. Because functioning without a third of the court's judicial complement will complicate prompt, economical and fair appellate resolution President Barack Obama must expeditiously nominate, and the Senate should promptly confirm, excellent judges for all five openings.

The large number of vacancies can undermine the delivery of justice by the tribunal, which is the court of last resort for 99 percent of appeals pursued from Virginia, West Virginia, Maryland, North Carolina and South Carolina.

The court also resolves highly controversial questions relating to issues, such as abortion, gun control and terrorism. Among the 12 regional circuits, the court furnishes the lowest percentages of published opinions and oral arguments, which are valuable metrics of appellate justice.

Judge Williams's retirement will exacerbate this situation. For instance, the court recently rescheduled oral argument in Zacarias Moussaoui's appeal because Williams had been a member of the panel that originally heard the case. Nonetheless, the tribunal does resolve appeals most rapidly.

There are several reasons why the court lacks 33 percent of its judges. Democrats asserted that President George W. Bush tapped conservative nominees, who were not consensus choices, and refused to consult senators, including GOP members, from the states where vacancies occurred before he submitted nominees. Bush even nominated several prospects multiple times, despite clear opposition from his own party. Republicans claimed that Democrats did not swiftly assess candidates whom the White House nominated or promptly schedule Judiciary Committee hearings and votes or Senate floor debates and votes. Indeed, the Democratic majority in the 110th Senate supplied no hearings for the five Bush nominees to the four unfilled judgeships remaining at his tenure's conclusion.

President Obama has instituted a few practices that should facilitate expeditious appointments.

First, he pursued bipartisanship to break the deleterious cycle of charges and recriminations, partisan infighting and incessant paybacks. Second, the White House fostered consultation by soliciting guidance on candidates from Democratic and GOP Senate members, particularly home state senators, prior to actual nominations. Obama has also tendered consensus nominees, who possess balanced temperament and are very intelligent, ethical, industrious and independent. He has cooperated with Senator Patrick Leahy (D-Vt.), the Judiciary panel chair, who arranges committee hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their GOP analogues to expedite confirmations.

Illustrative is Obama's nomination of U.S. District Judge Andre Davis, who has rendered distinguished service on the U.S. District Court for the District of Maryland since 1995. Maryland Democratic Senators Barbara Mikulski and Ben Cardin promptly recommended the experienced trial judge to the President, who nominated him on April 2. By late April, the committee held Davis's confirmation hearing, and on June 5, the panel approved Davis 16 - 3. Senator Reid must quickly schedule Davis's floor debate and vote.

Virginia Democratic Senators Jim Webb and Mark Warner have recommended Virginia Supreme Court Justice Barbara Milano Keenan for a Virginia opening. The White House should expeditiously consider that suggestion. North Carolina Democratic Senator Kay Hagan has appointed a panel to vet candidates, which has sent her recommendations, and she will soon make suggestions to the White House for a North Carolina vacancy.

No recommendations for the South Carolina opening created by Judge William Wilkins's 2007 assumption of senior status have been announced, so the White House should consult with high-ranking Democratic elected officials, such as Representative Jim Clyburn, as well as Republican Senators Lindsey Graham and Jim DeMint, to expedite recommendations and promptly nominate a candidate.

Judge Karen Williams's unfortunate retirement means that five of the Fourth Circuit's fifteen judgeships are empty. President Obama should work closely with the Senate to rapidly fill the seats with superior judges, so that the court can better deliver appellate justice.

ABOUT THE WRITER

Carl Tobias is the Williams Professor at the University of Richmond School of Law

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